This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2008AP457-CR

Cir. Ct.
No.2007CT4096

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT I

State of Wisconsin,

Plaintiff-Respondent,

v.

Richard Ross,

Defendant-Appellant.

APPEAL
from a judgment of the circuit court for MilwaukeeCounty:dominic
s. amato, Judge.Reversed.

¶1CURLEY, P.J.[1] Richard
Ross appeals the judgment, entered following a bench trial, convicting him of operating
while under the influence of an intoxicant, second offense, contrary to Wis. Stat. §§ 346.63(1)(a) and
346.65(2) (2005‑06).[2]On appeal, Ross argues that the trial court
erred in finding him guilty because the State failed to prove beyond a
reasonable doubt that he operated the motor vehicle, which is an element of the
charge.This court agrees and reverses
the judgment.

I. Background.

¶2A University of Wisconsin-Milwaukee police officer testified
at Ross’s bench trial that on August 4, 2007, he was driving to a campus building
when he saw a car stopped in the right-hand lane of traffic on Farwell
Avenue.The car had its hazard lights
on.The officer went around the block,
pulled up behind the car, parked and approached Ross, who was sitting in the
driver’s seat.The officer, suspecting
that Ross was intoxicated because he had “glassy, bloodshot eyes, spoke with
slurred speech, and [had] an odor of intoxicant on him,” instructed Ross to
turn off the engine and exit the car.The officer had Ross perform several field sobriety tests; Ross failed
all but one.The officer then placed Ross
under arrest and transported him to the police station.There, Ross submitted to an intoximeter, a
breath test, which revealed that he had a breath alcohol concentration of .15
grams of alcohol per 210 liters of breath.During an interview, Ross told the officer that he was not driving the
car, his girlfriend was.

¶3At his trial, the girlfriend, Colleen Thomas, by now a former
girlfriend, testified.She verified
Ross’s account that, on the night in question, she and Ross had attended a
Brewers game and then stopped at a bar on the east side of Milwaukee.She stated that she was driving his car that
evening as she was the “designated driver,” and after leaving the bar and
driving out of the parking lot, she realized she left her I.D. in the bar.She explained to the judge that, as a result,
she then pulled to the side, left the engine running, put on her hazard lights
and went back to the bar to fetch her I.D.She recounted that when she left the car, Ross was in the passenger
seat.She also told the court that she
never spoke to the officer that evening because “I had a few drinks and I
didn’t want to get in trouble, too.”

¶4Ross also testified.He detailed the evening’s events, which mirrored the testimony given by
Thomas.He told the court that after Thomas
left the car, he realized the car was blocking traffic.As a result, Ross testified:“I had a prior DUI.I did not want to drive the car, so I hopped
over to the driver’s seat and instead of moving the car, rolled down the window
and started waiving [sic] traffic by.”Ross denied ever touching the steering wheel, the gear shift, the gas pedal,
the clutch, or the brakes.He described
how he moved from the passenger side to the driver’s side, by stating that he grabbed
the door handle, pulled himself over the shifter and sat down.

I’m satisfied as the trier of
fact that yes, she started driving the vehicle.

She
was going to be the designated driver.She knows how to operate a stick.I’m satisfied as to that.

I’m
also satisfied from the evidence that while she was driving the vehicle, she
started drinking a lot, too.That
clearly explains why, when she came out of the bar, she did not want to
acknowledge that she was driving, because she did not want to face the
potential of having to go through what the defendant Ross went through.

However, the
trial court went on to find Ross guilty, stating:

But
this trier of fact is also satisfied beyond a reasonable doubt that Mr. Ross
made a choice to get behind the wheel of that vehicle while it was parked
improperly when she went in the bar, so he could take control and operation of
the motor vehicle at that point in time.

This
court does not find at all credible his testimony [that] he did not touch any
of the operating apparatuses, such as the stick, steering wheel, brake, clutch
pedal, or anything with regard to getting over from the passenger side of the
vehicle – over to the driver’s side.

The
evidence clearly suggests when he was rolling down the window, had the window
down, waving vehicles by, that further demonstrates, and this court is
satisfied from circumstantial evidence, that there is a reasonable inference,
thereafter, that he was actually operating the vehicle.

It’s
very hard to get over a stick shift on a column with the brake up, because the
vehicle would have to be in neutral with the engine running.

It
could only be in gear with the engine stopped, so it would have to be in
neutral to get over from one side to the other, and [sic] at a [breath alcohol
concentration of] .15, without exercising or starting to exercise operation and
control over that vehicle.

II. Analysis.

¶6This court will not reverse a trial court’s findings of fact
unless they are shown to be clearly erroneous.Wis. Stat. § 805.17(2).

¶7In reviewing the sufficiency of evidence to support a
conviction, this court “may not substitute its judgment for that of the trier
of fact unless the evidence, viewed most favorably to the state and the
conviction, is so lacking in probative value and force that no trier of fact,
acting reasonably, could have found guilt beyond a reasonable doubt.”State v. Poellinger, 153 Wis. 2d 493, 507,
451 N.W.2d 752 (1990).

¶8Wisconsin Stat. § 346.63(1)(a) states, in relevant
part:

(1) No person may drive or operate a motor vehicle
while:

(a) Under
the influence of an intoxicant, a controlled substance, a controlled substance
analog or any combination of an intoxicant, a controlled substance and a
controlled substance analog, under the influence of any other drug to a degree
which renders him or her incapable of safely driving, or under the combined
influence of an intoxicant and any other drug to a degree which renders him or
her incapable of safely driving.

¶9The term “operate” is defined in Wis. Stat. § 346.63(3)(b), which reads:“‘Operate’ means the physical manipulation or
activation of any of the controls of a motor vehicle necessary to put it in
motion.”Because this is a criminal
charge, the State had the burden of proving the charge beyond a reasonable
doubt.SeeWis JI—Criminal 2669.

¶10The interpretation of a statute is a question of law that we
review without deference to the trial court.SeeState v. Sostre, 198 Wis. 2d 409, 414, 542 N.W.2d 774 (1996).

¶11The parties have each cited a case which they claim supports
their position.The State submits that
the facts here fall within the holding in County of Milwaukee v. Proegler, 95 Wis. 2d 614, 291 N.W.2d
608 (Ct. App. 1980), while Ross argues that this case resembles the facts in Village
of Cross Plains v. Haanstad, 2006 WI 16, 288 Wis. 2d 573, 709 N.W.2d
447 .

¶12In Proegler, Proegler was found sleeping, at approximately 4:00 a.m.
behind the steering wheel of a pickup truck parked partially on an emergency
ramp of an expressway.Id.,
95 Wis. 2d at
618.The motor was running, the truck’s shift
lever was in the “park” position, and the lights and heater were on.Id.Proegler admitted parking the car several
hours earlier and falling asleep.Id.He submitted to a breathalyzer test which
revealed he was intoxicated.Id.Following a court trial, Proegler was found
guilty of operating while intoxicated and he appealed.Id.On appeal, he claimed, inter alia, that the evidence was “against the great weight and
clear preponderance of the evidence.”[3]Id.at
620.In upholding the conviction, this
court addressed the dangers posed by a sleepy drunk driver who pulls off the
road and also agreed with the trial court “that the circumstantial evidence …
was sufficient to substantiate the fact that defendant ‘operated’ his truck
within the meaning of [Wis. Stat. §] 346.63.”Proegler, 95 Wis. 2d at 628. Specifically, this court noted that the
intoxicated Proegler drove his truck to the spot where he was found, had “stopped
there without completely pulling off the highway, left the motor running and
the lights on, and then fell asleep.”Id.

¶13In the Haanstad case, Haanstad appealed her
conviction for operating while intoxicated to the supreme court. Id., 288 Wis. 2d 573, ¶1. Originally, the trial court acquitted her of
the charge; however, this court reversed.Id.Haanstad did not challenge the fact that she
was intoxicated; rather, she claimed she never operated the car after consuming
alcohol.Id., ¶2.The facts were undisputed that Haanstad had
permitted Timothy Satterthwaite, a man she met that evening at a bar, to drive
her, in her car, to a park.Id., ¶3.During the trip to the park, Haanstad had
been sitting in the passenger seat.Id.With the “vehicle running and the headlights
on,” Satterthwaite exited the car to help a friend, who was also a passenger in
Haanstad’s car, get into Satterthwaite’s vehicle, which was parked next to
Haanstad’s car. Id., ¶4. When Satterthwaite left, Haanstad slid over to
the driver’s side and positioned herself so that her body and her feet faced
the passenger seat. Id.A police officer discovered Haanstad in this
position and she was arrested for operating while intoxicated and operating
with a prohibited alcohol concentration.Id.,
¶¶5, 8, 10.In overturning this court’s
decision, the supreme court observed:

In
contrast (to Proegler), the evidence here is undisputed that Haanstad did
not drive the car to the point where the officer found her behind the wheel. Further, there is no evidence that the
defendant “activated” or “manipulated” any control in the vehicle that is necessary
to put the vehicle in motion. The
Village offered no circumstantial evidence to prove that Haanstad had operated
the vehicle. The Village does not
contest that Satterthwaite was the individual who “operated” the vehicle by
driving it, placing it in park, and leaving the motor running. The Village does not claim that Haanstad drove
or even touched the controls of the vehicle at any time while she was
intoxicated. There is no dispute: Haanstad never touched the controls of the
vehicle. As the [trial] court judge so
aptly stated, “if she is guilty, she is guilty of sitting while intoxicated.”

Id., ¶21
(parenthetical added).

¶14This court is satisfied that the facts here are similar to
those in Haanstad.Ross was found
in the driver’s seat, but denied that he had operated the car.His witness confirmed that she drove the car
to its location and left Ross in the passenger’s side.No evidence was submitted that the car had
moved from this location.No testimony
was ever presented that Ross had touched any of the controls.

¶15While the trial court’s findings are a bit cryptic, the trial
court clearly accepted the testimony of Thomas that she drove that evening
after leaving the bar and left the car running while she retrieved her identification.“I’m satisfied as the trier of fact that yes,
she started driving the vehicle.She was
going to be the designated driver.She
knows how to operate a stick.I’m
satisfied as to that.”Consequently,
Ross’s actions that constituted operating while intoxicated had to have
occurred after Thomas exited the car.The trial court went on to find that it did not believe Ross’s testimony
as to what occurred after Thomas exited.However, the only other evidence in the record concerning the evening’s
events in the car after Thomas left was that of the officer who saw Ross in the
driver’s seat and Ross later told him he was waiting for his girlfriend, which
is consistent with Thomas’s testimony.

¶16Despite the trial court’s apparent displeasure with Ross’s
account that he never touched any of the vital operating parts of the car, the
trial court must have believed some of Ross’s testimony because only Ross
testified to the events which led the court to believe he was guilty.The trial court stated: “The evidence clearly suggests when he was
rolling down the window, had the window down, waving vehicles by, that further
demonstrates, and this court is satisfied from circumstantial evidence, that
there is a reasonable inference, thereafter, that he was actually operating the
vehicle.”However, rolling down a window
and waving vehicles by it does not constitute “physical manipulation or
activation of any of the controls of a motor vehicle necessary to put it in
motion.”See Wis. Stat. § 346.63(3)(b).Nor does rolling down a window and waving
cars by lead to the inevitable conclusion, as found by the trial court that,
following these acts, Ross operated the car.Thus, these actions testified to by Ross would not be sufficient to
convict him.

¶17The only other finding made by the trial court had to do with
the manner in which Ross moved to the driver’s seat.After discrediting Ross’s explanation that he
grabbed the door handle, pulled himself over the shifter and sat down to move
into the driver’s seat, the trial court theorized:

It’s very hard to get over a
stick shift on a column with the brake up, because the vehicle would have to be
in neutral with the engine running.

It could only be in gear with the engine stopped, so it
would have to be in neutral to get over from one side to the other, and [sic] at
a [breath alcohol concentration of] .15, without exercising or starting to exercise
operation.

¶18First, the trial court’s conclusion that Ross could not get
into the driver’s seat without manipulating the controls is pure
speculation.No testimony supports such
a finding.The trial court never saw the
car in which this occurred.It may well be
that it is easier to maneuver in Ross’s car than in cars the trial judge has
driven.Moreover, the trial court did
not explain what Ross would have had to do to operate the car in order to reach
the driver’s side under the trial court’s hypothesis.Second, stating it was very hard to get over
a stick shift does not make it impossible.According to the ticket issued to Ross by the police officer, Ross was twenty-three
years old, was 5’10” tall, and weighed only 145 pounds.At that age and weight it is quite possible that
Ross moved to the driver’s seat without touching the controls as he testified .Further, even if Ross had touched one of the
controls, this does not lead to the automatic conclusion that Ross physically
manipulated or activated the motor vehicle, as is required for a
conviction.Finally, this finding by the
trial court is not the type of circumstantial evidence that can be relied upon
for a conviction.Wisconsin JI—Criminal 170 explains:

Circumstantial evidence is
evidence from which a jury may logically find other facts according to common
knowledge and experience.

Circumstantial
evidence is not necessarily better or worse than direct evidence.Either type of evidence can prove a fact.

Whether
evidence is direct or circumstantial, it must satisfy you beyond a reasonable
doubt that the defendant committed the offense before you may find the
defendant guilty.

¶19Here, the trial court could not find beyond a reasonable doubt that
Ross physically manipulated or activated any of the controls on the motor
vehicle necessary to put it in motion when changing seats.See Wis. Stat. § 346.63(3)(b).It does not logically follow that because the
trial court found Ross’s explanation incredible, that the only way he could
have entered the driver’s seat was by manipulating or activating the controls.There were other routes that Ross could have
taken to get into the driver’s seat.For
instance, he could have simply gotten out of the car on the passenger side and
walked around to the other side.Moreover, if Ross was operating the car, as the court believed, he would
have simply moved it, rather than leaving it awkwardly positioned in the
roadway, while waving vehicles around it.

¶20Thus, this court concludes that the trial court’s findings in
this case are “so lacking in probative value and force that no trier of fact,
acting reasonably, could have found guilt beyond a reasonable doubt.”Poellinger, 153 Wis. 2d at 507.As a result, the judgment of conviction is
reversed.

By the Court.—Judgment reversed.

This
opinion will not be published.SeeWis.
Stat. Rule 809.23(1)(b)4.

[1] This
appeal is decided by one judge pursuant to Wis.
Stat. § 752.31(2)(f) (2005‑06).

[2] All
references to the Wisconsin Statutes are to the 2005-06 version unless
otherwise noted.

[3] Proegler
was apparently charged with first time operating while intoxicated which is not
a crime.See Wis. Stat. §§ 346.63(1)
& 346.65(2).